Archives for November 2016

On October 31, 2016, the Copyright Office issued a new rule for how agents must be registered for safe harbor protection under the Digital Millennium Copyright Act (“DMCA”). For over a decade, the Copyright office accepted paper forms designating an agent for a company or website, identifying the individual to whom rights holders must send take-down notices under 17 U.S.C. § 512(c)(3). Now, it is changing to an online-only method of registration.

The New Requirements.

Beginning on December 1, 2016, the Copyright Office will no longer accept paper forms for designating registered agents to receive DMCA take-down notices. For existing entities that have previously registered agents to receive DMCA take-down notices at some point in the last 15 years, new registrations are required under the new electronic system. Fortunately, the cost for registration is down–just $6.00 each, and with more flexibility for one company to designate multiple domain names as its online properties.

Penalties for Non-Compliance.

As a stick to induce adoption of the online registry, the Copyright Office will deem DMCA agent registrations that are not made or re-registered through the online system to be invalid as of December 31, 2017. This is critical, because registration of a DMCA agent is one of the foundational elements of receiving safe harbor protection under the DMCA, and not being liable for infringing material that individuals post on your website (e.g., images, quoted text from news articles, and other copyrightable items–provided they do not fall under the umbrella of fair use, as discussed in more detail in 17 U.S.C. § 107). While the rules for registering an agent to receive DMCA take-down notifications, the statute in the books at 17 U.S.C. § 512(c)(2) remains unchanged:

The limitations on liability established in this subsection apply to a service provider only if the service provider has designated an agent to receive notifications of claimed infringement described in paragraph (3), by making available through its service, including on its website in a location accessible to the public, and by providing to the Copyright Office, substantially the following information:

(B)other contact information which the Register of Copyrights may deem appropriate.

Thus, while there is a year to comply with this new rule, the penalties for non-compliance may be strong medicine. While prior case law construing the DMCA has afforded websites the benefits of its safe harbor where they “substantially comply” with the law’s requirements, query whether not having a validly registered agent for receiving DMCA agents “substantially” complies with statutory language unambiguously requiring an online service provider to do so.

Change for Change’s Sake?

While this update may throw a few service providers on the fringe of DMCA compliance into the wilderness and out of the safe harbor’s protections, it likely will not do much to aid content creators. The DMCA remains intact and unchanged since minor housekeeping affected its language in 2010, and thus the opinions construing it across the country–accommodating the existence of services such as Google Image Search, YouTube, and more–will not have to be altered or revisited. While this puts a new compliance burden onto smaller online service providers to maintain their safe harbor protections, it is far from a panacea for rights holders seeking to impose stronger penalties for infringement online.